State v. Parker

• Decision Date: 28 May 1912
• Citation: 59 So. 741,5 Ala.App. 231
• Parties: STATE v. PARKER.
• Court: Alabama Court of Appeals

59 So. 741

5 Ala.App. 231

STATE v. PARKER.

Court of Appeals of Alabama

May 28, 1912

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Joseph Parker was prosecuted on complaint charging that he failed or refused to pay a tax of 3 cents per barrel on 300 barrels of oysters taken from the public reefs or private bedding grounds of the state of Alabama for packing, canning, etc or for sale. Demurrer to complaint sustained, and the State appeals. Reversed and remanded.

R. C. Brickell, Atty. Gen., W. L. Martin, Asst Atty. Gen., and Inge & McCorvey and N. R. Clarke, all of Mobile, for the State.

Webb &amp McAlpine, of Mobile, for appellee.

WALKER, P.J.

This was a prosecution against the appellee which was commenced by an affidavit or complaint, charging "that within 60 days Joseph Parker did fail or refuse to pay the tax of 3 cents per barrel on 300 barrels of oysters caught and taken from the public reefs or private bedding grounds of the state of Alabama for packing, canning, shipping, or for sale, contrary to law, against the peace and dignity of the state of Alabama." The court sustained a demurrer to the affidavit or complaint, upon the ground that "the act under which it is drawn is unconstitutional."

The case is brought into this court by an appeal taken under the provision of the statute (Code, § 6246) allowing an appeal by the state "in all criminal cases when the act of the Legislature under which the indictment or information is preferred is held to be unconstitutional." "The statute under which the appeal is taken limits the consideration and decision of this court to the constitutionality of the statute drawn in question. If the statute be constitutional, the judgment adjudging it unconstitutional must be reversed, though it be apparent the indictment founded on the statute cannot be maintained." State v. Street, 117 Ala. 203 212, 23 So. 807. Some questions which have been made subjects of discussion in the arguments of counsel are not, under the rule stated in the quotation just made, presented for our consideration or decision.

The act with which the defendant was charged was in contravention of the terms of section 9 of the statute known as the Alabama Oyster Commission Law (General Acts Ala. 1911, pp. 458, 466), which provides "that in addition to the privilege license or tax required in this act a further tax of three cents per barrel is hereby laid upon all oysters, canned, packed, shipped, or sold in and from this state, and on all oysters caught and taken from the public reefs and private bedding grounds, for packing, canning, shipping, or for sale. * * * The taxes hereby provided for in this section are to be levied and collected only when the oysters * * * are caught, canned, packed, or shipped for commercial purposes. This tax shall be paid by the person, firm or corporation first marketing the oysters, * * * and any person who has purchased the same from a dealer who has paid the tax thereon shall not be taxed again." The demurrer to the affidavit or complaint raised the question of the constitutional validity of the provision for the imposition of such a charge "on all oysters caught and taken from the public reefs and private bedding grounds for packing, canning, shipping or for sale," as it is a violation of this particular feature of the provision quoted which is charged against the defendant.

The validity of the imposition in question is attacked upon grounds which may be grouped and stated as follows: (1) That the tax is one upon property, and is invalid because the provision for its imposition is made in disregard of the constitutional requirement (Constitution, § 211) that such a tax "shall be assessed in exact proportion to the value of such property"; (2) that the tax, being "on all oysters caught and taken from the public reefs and private bedding grounds, for packing, canning, shipping, or for sale," applies as well to oysters caught or taken in waters within the jurisdiction of another state as to those caught or taken in the waters of this state, and is invalid as involving an unauthorized interference with or charge upon interstate commerce; (3) that, the object of the tax in question being embraced within that of a privilege tax already provided for in another part of the same statute, this additional imposition is really an attempt to tax in the same way again a part of a whole that already had been taxed, and is subject to the objection mentioned in the opinion in the case of City Council of Montgomery v. Kelly, 142 Ala. 552, 558, 38 So. 67, 70 L. R. A. 209, 110 Am. St. Rep. 43, to such an accumulation of burdens upon a single subject of taxation; and (4) that if the imposition in question is regarded as a privilege tax, or a tax upon acts done, it cannot be sustained, in so far as it is applicable to the charge made in this case, which, being in the alternative, does not necessarily import anything more than a failure of the defendant to pay the prescribed tax on oysters caught or taken by him on his own private bedding grounds, for packing, canning, shipping, or for sale, as it constitutes an unwarranted interference with one's right to sell his own property, certainly so far as it is applicable to the owners of, or oysters caught or taken from, private bedding grounds.

The first-mentioned ground of objection cannot be sustained without first determining that the charge in question is a tax upon property, within the meaning of the constitutional requirement that such taxes shall be assessed "in exact proportion to the value of such property." The distinction between property as a subject of taxation and other subjects of taxation is a familiar one in this state. The recognition of this distinction by the court in the opinion rendered in the case of Lott v. Ross & Co., 38 Ala. 156, resulted in the conclusion that an authority conferred by statute upon a local tribunal to assess and collect a tax, "not exceeding twenty cents upon each hundred dollars of taxable property within said county," did not confer the power to levy a tax of 20 cents upon each $100 of the gross amount of sales of merchandise made during the tax year. It was determined in that case that the statute there under consideration authorized the assessment and collection of a tax upon one subject of taxation, and that the alleged tax there brought into question was unauthorized, as it was upon another and different subject of taxation, which the statute had not made liable to such an imposition. In discussing the question presented, it was said in the opinion: "A tax upon 'the gross amount of sales of merchandise,' under section 391 of the Code [1852], is not a tax upon the goods themselves, or the fruits of the sale, but upon the business or act of selling. This is not, then, a property or income tax, but an occupation or privilege tax; the amount being regulated by the extent to which the privilege has been enjoyed. * * * In the present case, we are unable to discover anything in the context which requires us to wrest the words from their ordinary meaning; and certainly we cannot affirm that the plain object of this law will be defeated if we do not interpret them in the large sense contended for. The context shows that the words cannot be construed to embrace all taxable subjects. The tax is to be assessed 'upon each hundred dollars' of the things taxed; and as there is a large class of taxable subjects not susceptible of valuation, and of which a pecuniary amount is not predicable, such as the poll, licenses, professions, seals, suits, etc., it is obvious that we cannot understand the words as embracing everything subject to taxation under the general law." On similar considerations, the conclusions have been reached that a tax of 2 per cent. levied on the gross amount of the receipts of every telegraph company, "derived from business done by it in this state," was not a property tax, nor violative of any constitutional provision regulating taxation (Western Union Telegraph Co. v. State Board of Assessment, 80 Ala. 273, 60 Am. Rep. 99); that a statute levying a tax of 1 per cent. of the gross receipts of specified enterprises and businesses, after deducting the expenses of carrying on such business, was a provision for occupation or privilege taxes, and not a tax on property, and therefore was not subject to the constitutional provision as to taxes on property (Capital City Water Co. v. Board of Revenue, 117 Ala. 303, 23 So. 970); and that a tax on the gross amount of the sales of a retail merchant is not a tax on property, though the amount of the tax is determined by the amount of the stock of merchandise employed in the business (Goldsmith v. Mayor and Aldermen of Huntsville, 120 Ala. 182, 24 So. 509; Saks v. Mayor and Aldermen of Birmingham, 120 Ala. 190, 24 So. 728). That the charge now in question--being laid, not upon oysters as property subject to taxation, but upon oysters canned, packed, shipped, or sold, or caught and taken from the public reefs and private bedding grounds, for packing, canning, shipping, or for sale, and only when they are caught, canned, packed, or shipped for commercial purposes, the amount to be paid by the person, firm, or corporation first marketing them--is not a tax upon property, but a charge or imposition upon the business or acts of marketing oysters, is a conclusion plainly supported by the rulings made in the cases above referred to. It follows from this conclusion that the first-mentioned ground of attack upon the validity of the provision in question cannot be sustained.

As liability for the imposition in question is by the statute made to result from a disposition of oysters located in this state at the time of such disposition, it seems that the...